1828059 (Refugee) - [2024] AATA 1127

1828059 (Refugee) [2024] AATA 1127 (6 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Miss Mary O'Callaghan
CASE NUMBER:  1828059
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Alison Murphy
DATE:6 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision refusing to grant a Safe Haven Enterprise visa and substitutes a decision that the protection visa application is not valid and cannot be considered.

Statement made on 06 March 2024 at 11:11am
CATCHWORDS
REFUGEE – protection visa – stateless – unauthorised maritime arrival – application deemed invalid – temporary protection visa application granted – no jurisdiction
LEGISLATION
Migration Act 1958, ss 5AA, 45AA, 48, 65, 91
Migration Regulations 1994, Schedule 1, Item 1404; r 2.08
CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 February 2017 to refuse to grant the applicant a Safe Haven Enterprise visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 12 February 2016. The delegate purported to make a decision to refuse to grant the visa on the basis that the applicant did not meet the applicable visa criteria.
BACKGROUND
The applicant arrived in Australia by boat and without a visa [in] October 2012, identifying himself as a stateless Rohingyan from Myanmar.
He lodged an application for a Protection visa on 12 November 2013. A case note dated 18 November 2013 records that the visa application was deemed to be invalid because of the statutory bar in s 91K.
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] October 2012. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a protection visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.
The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 12 December 2012. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1828059 (Refugee)

Details

AGLC: 1828059 (Refugee) [2024] AATA 1127
Case: [2024] AATA 1127
Decision Date: 6 March 2024

CaseChat Overview and Summary

The applicant, who arrived in Australia by sea in October 2012, sought review of a decision to refuse to grant him a Safe Haven Enterprise visa (SHEV). The applicant had previously lodged a Protection visa application in November 2013, which was initially deemed invalid due to a perceived statutory bar under s 91K of the *Migration Act 1958* (Cth). However, subsequent Full Federal Court decisions clarified that individuals arriving by sea at the Territory of Ashmore and Cartier Islands are not considered 'unauthorised maritime arrivals' for the purposes of this bar. Consequently, the applicant's initial Protection visa application was valid from its lodgement and, by operation of regulation 2.08F of the *Migration Regulations 1994* (Cth) and s 45AA of the Act, converted to a Temporary Protection visa application in December 2014.

The primary legal issue before the Tribunal was the validity of the applicant's SHEV application, lodged in February 2016. The Tribunal was required to determine whether the applicant met the requirements for a valid SHEV application as set out in item 1404 of Schedule 1 to the Regulations. Specifically, the Tribunal considered the condition that an applicant must not have made a valid application for a temporary protection visa, or if they had, that such application must have been refused, granted, or withdrawn.

The Tribunal reasoned that at the time the applicant lodged his SHEV application in February 2016, his application for a Temporary Protection visa had not yet been refused, granted, or withdrawn. Therefore, the applicant did not satisfy the prerequisite in item 1404(3)(f) of Schedule 1 to the Regulations, rendering his SHEV application invalid. The Tribunal noted that the delegate's decision to refuse the SHEV visa was based on an incorrect premise regarding the applicant's status as an unauthorised maritime arrival.

Accordingly, the Tribunal set aside the delegate's decision refusing to grant the SHEV visa and substituted it with a decision that the SHEV application was invalid and could not be considered.

Orders

Orders of the court

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Background

Background to the litigation

The applicant applied for the visa on 12 February 2016. The delegate purported to make a decision to refuse to grant the visa on the basis that the applicant did not meet the applicable visa criteria.BACKGROUND The applicant arrived in Australia by boat and without a visa [in] October 2012, identifying himself as a stateless Rohingyan from Myanmar. He lodged an application for a Protection visa on 12 November 2013. A case note dated 18 November 2013 records that the visa application was deemed to be invalid because of the statutory bar in s 91K. According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] October 2012. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a protection visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal. The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 12 December 2012. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. On 12 November 2013, the applicant made an application for a permanent Protection visa (Class XA) (the first visa application). This was initially considered to be an invalid visa application due to the operation of s 91K. The applicant then applied for a Safe Haven Enterprise visa (the SHEV) on 12 February 2016 (the second visa application), which was purportedly refused by a delegate on 22 February 2017. The IAA affirmed that refusal on 24 October 2017. An application for review of that decision was made on 25 September 2018. As a result of the Full Federal Court’s judgments in DBB16 and CBW20, the applicant’s Protection visa application is now acknowledged to have been valid from the time it was made. As the Minister (or a delegate) had not made a decision in relation to the first visa application under s 65 of the Act by 16 December 2014, it converted to an application for a Temporary Protection visa on that date (reg 2.08F of the Migration Regulations 1994 (Cth) (the Regulations) and s 45AA of the Act). On 6 October 2023 the Tribunal wrote to the applicant advising that it appeared the SHEV application was invalid because it is a requirement for a valid application for a SHEV that the applicant has not made a valid application for a temporary protection visa; or alternatively that it has been refused, granted or withdrawn. The Tribunal noted that as the temporary protection visa application had not been refused, granted or withdrawn at the time the second visa application was made, it appeared that the requirements in item 1404(3)(f) were not met and the second visa application is not a valid. The Tribunal’s correspondence set out that if that were the case, it would appear the Tribunal must set aside the delegate’s decision refusing to grant the applicant the SHEV and substitute it with a decision that the visa application is invalid.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

This means that the applicant did not satisfy the requirements in item 1404 of Schedule 1 to the Regulations for making a valid SHEV application. Accordingly, the Tribunal must set aside the delegate’s decision refusing to grant the applicant a SHEV and substitute it with a decision that the SHEV application is invalid.DECISION The Tribunal sets aside the decision refusing to grant the SHEV visa and substitutes a decision that the SHEV application is not valid and cannot be considered.Alison MurphyMember

Ratio Decidendi

Legal Principle Established

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